Citation Nr: 0722484 Decision Date: 07/24/07 Archive Date: 08/02/07 DOCKET NO. 06-33 630 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The veteran served on active duty from February 1944 to June 1946. The veteran died in September 1973. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a May 2004 rating decision by which the RO denied the appellant's claim. In February 2007, the appellant testified at a hearing before the undersigned at the RO. She waived initial RO consideration of evidence submitted in conjunction with her hearing. 38 C.F.R. § 20.1304 (c) (2006). FINDINGS OF FACT 1. During his lifetime, the veteran was not in receipt of service connection for any disability. 2. The veteran died in September 1973; the cause of death was listed as a suicide resulting from a gunshot wound to the chest. 3. The veteran's death is not the result of a disease or injury incurred in service. CONCLUSION OF LAW Service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. §§ 1310, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.312 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2006). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103; 38 CFR § 3.159(b)(1). The United States Court of Appeals for Veterans Claims (Court) has provided additional guidance with respect to VA's VCAA notification obligations. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the notice requirements of section 5103(a) apply generally to the following five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. In addition, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that under the notice provisions of VCAA, a claimant must be provided notice of the evidentiary matters specified in statute and regulation before an initial unfavorable decision by the RO. In this case, in March 2004 and September 2006 letters, the RO notified the appellant of the information and evidence needed to substantiate and complete her claim, and of what part of that evidence she was to provide and what part VA would attempt to obtain for her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letters also advised the appellant to identify any additional information that she felt would support her claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). The appellant was also apprised of disability ratings and effective dates. Dingess/Hartman, supra. In summary, the evidence does not show that any notification deficiencies have resulted in prejudice. Therefore, the Board finds that to decide the appeal at this time would not be prejudicial to the appellant. Under VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). In this case, the veteran's service medical records are on file as are post service VA and private medical records. The record also contains a VA psychological opinion obtained in connection with the claim. Other potentially relevant evidence referenced by the appellant is no longer available, according to her assertions. There is no indication that any other available and relevant evidence has not been associated with the claims file. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Standard of Review When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Law and Regulations In order to establish service connection for the cause of the veteran's death, the medical evidence must show that disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one not related to the principal cause. In determining whether the service- connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1); see also Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2). Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(3). Generally speaking, compensation shall not be paid if the disability was the result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2006). In order for suicide to constitute willful misconduct, the act of self-destruction must be intentional. A person of unsound mind is incapable of forming an intent (mens rea, or guilty mind, which is an essential element of crime or willful misconduct). It is a constant requirement for a favorable action that the precipitating mental unsoundness be service connected. 38 C.F.R. § 3.302(a) (2006). Whether a person, at the time of suicide, was so unsound mentally that he or she did not realize the consequences of such an act, or was unable to resist such impulse is a question to be determined in each individual case, based on all available lay and medical evidence pertaining to his or her mental condition at the time of suicide. The act of suicide or a bona fide attempt is considered to be evidence of mental unsoundness. Therefore, where no reasonable adequate motive for suicide is shown by the evidence, the act will be considered to have resulted from mental unsoundness. A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational person to self-destruction. 38 C.F.R. § 3.302(b). With respect to alcohol and drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, § 8052 also amended 38 U.S.C. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. Factual Background The service medical records reflect no psychiatric problems, alcohol abuse, or alcoholism. During service, the veteran sent the appellant, whom he had not yet married, many letters that included references to drinking. For example, in October 1945 he wrote about acquiring some scotch and a few cases of beer that he shared with friends and that he did not think that he had ever had so much to drink. He said, "Boy, I wish I had a drink of that scotch right now, maybe it would straighten me out. I have butterflies in my tummy. That is the only thing I hate about the day after". From March to April 1951, the veteran was hospitalized at a VA facility due to emotional problems. On admission, he stated that he had taken on additional employment and was sleep deprived. He became irritable and had crying spells. According to the records, he exhibited symptoms of anxiety and depression. He was admitted to an open psychiatric ward. The diagnosis was of acute situational maladjustment manifested by insomnia, fatigue, crying spells, stress stemming from excessive vocational pursuits, and mild schizoid personality. The prognosis was excellent. From January to February 1973, the veteran was hospitalized at Our Lady of Peace Hospital. On admission, he asserted that had a "habit of drinking" for many years but nothing like his alcohol consumption during the past several years and unlike the increased alcohol abuse over the previous six months. He spoke of changes in his marriage that had taken place in recent times and estrangement from his wife. He also mentioned difficulty functioning at work. According to the discharge report, the veteran had been receiving treatment at Sts. Mary and Elizabeth Hospital where he was receiving treatment for congestive heart failure that was considered secondary to chronic ethanolism. The veteran appeared anxious and stated that he drank to relieve those feelings. The discharge diagnosis was of episodic excessive drinking, depressive neurosis, and passive-dependent personality. In September 1973, the veteran died of a gunshot wound to the chest that was ruled a suicide. During his lifetime, the veteran had no service-connected disabilities. In a written statement received in July 2005, the appellant indicated that the veteran was reared in a non-alcoholic family and began drinking during service in the Marine Corps, where, according to her, drinking was encouraged. She asserted that the veteran's addiction to alcohol was due to service and that his suicide resulted from alcoholism acquired in service. In July 2006, at an RO hearing, the appellant again asserted that the veteran enlisted at the age of 18 and entered into an environment that encouraged drinking. She also stated that the veteran did not consume alcohol prior to service. The appellant knew the veteran before service and married him thereafter. She testified that upon the veteran's separation, she noticed that he was drinking excessively. She testified that approximately two years after her marriage to the veteran, he received treatment at Old Nichols Hospital for alcoholism but that records of that hospitalization were no longer available. She further stated that soon after separation, when drinking, the veteran would discuss moving bodies in Guam. He stopped speaking of Guam in later years. In August 2006, the RO sought a VA opinion regarding the cause of the veteran's death. A VA psychologist reviewed the record in its entirety and opined that there was no clear correlation between the veteran's alcohol consumption in service and alcoholism that can only be documented decades after service. There was also, according to the psychologist, no evidence that there was a nexus between any mental illness the veteran may have suffered and service. She opined, therefore, that the veteran's mental state that led to his suicide was not likely the result of service. During her February 2007 hearing before the undersigned, the appellant testified that the veteran was an alcoholic from the time he separated from service until his death. In the Marine Corps, where the veteran enlisted at an early age, he was encouraged and even coerced into drinking. She also testified that between separation and his hospitalization in 1951 he had sought treatment for alcoholism but that there were no records from this period. Discussion Because the veteran died as a result of suicide, the Board must first address the threshold question of whether such act constitutes willful misconduct, thus barring payment of compensation. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c). As noted above, in order for suicide to constitute willful misconduct, the act of self- destruction must be intentional. A person of unsound mind, however, is incapable of forming intent. In the instant case, it is undisputed that the veteran suffered from psychiatric illness at the time of his demise. A few months before his death, indeed, he was diagnosed with depressive neurosis. Throughout the years, the veteran was found to be depressed or anxious. None of the evidence, medical or otherwise, has suggested that the veteran was of sound mind at the time of his death or was otherwise capable of forming the intent necessary for self-destruction. Accordingly, the Board finds that the veteran's act of suicide does not constitute willful misconduct as defined by the regulations and will proceed to analyze the appellant's claim on the merits. The appellant contends that the veteran committed suicide due to years of alcoholism that began during service with the Marine Corps. The appellant, however, has not been shown to be component to render medical opinions, and the Board cannot credit her assertions in this regard. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). In any event, because she filed her claim of service connection for the cause of the veteran's death based on alcohol abuse in November 2003, well after October 31, 1990, it must be denied as due to misconduct etiology, namely, the abuse of alcohol. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c). Further, service connection for the cause of the veteran's death cannot be granted as due to a mental illness related to service that ultimately drove him to suicide. Admittedly, the veteran was drinking in service, as evidenced by his letters to the appellant. However, the service medical records reflect no treatment or complaints relevant to psychiatric problems, and the first record of psychiatric treatment after service is dated in 1951, quite a few years thereafter. The appellant testified that the veteran sought psychiatric treatment before 1951; however, the record contains no documentation of the such treatment. In any event, the condition that ultimately drove the veteran to suicide is unrelated to service according to the only competent opinion of record, namely that of the VA psychologist rendered in August 2006. Because the competent evidence reflects no relationship between any late-in-life psychiatric condition and service, service connection for the cause of the veteran's death is denied. 38 C.F.R. § 3.312. Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER The appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs